FDA Goes After Online Sales of Flavored Cigarettes

The U.S. Food and Drug Administration is warning more than a dozen online cigarette sellers that they may be in violation of the new regulations against selling most types of flavored cigarettes to U.S. citizens and have 15 days to prove that they have stopped those sales or risk government action.

A ban on the U.S. sale of cigarettes flavored with anything other than menthol went into effect on Sept. 22 as part of the Family Smoking Prevention and Tobacco Control Act.

That law, enacted in June, gives the FDA power to regulate the content of tobacco products, along with the marketing and distribution of cigarettes and smokeless tobacco, and the impact of ads for those products on young people. The new law also lets the FDA limit the amount of nicotine in products and block labels such as “light” and “low tar” that appear to offer “healthier” cigarettes.

The warning letters went out to 14 owners of Web sites that the FDA says are still offering the banned flavored cigarettes for sale to U.S. customers, according to Internet searches conducted by its own Office of Enforcement and by its new Center for Tobacco Products, a division created within the FDA in August to administer the new tobacco ad and promotion policies and review applications for the exemption of new tobacco products.

The FDA sent a previous letter to the tobacco industry at large on Sept. 14 reminding them of the flavored-cigarette ban and stating that company selling the banned products would be subject to enforcement.

This latest round of notices went out to individual merchants, some located in the United States and some based overseas but selling to U.S. citizens through their Web sites. All the letters cite the language of the new bill that “A cigarette or any of its component parts (including the tobacco, filter or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.”

If the products listed for sale on the merchants’ Web sites do contain such flavorings, the letters say, they are adulterated tobacco products and subject to FDA penalty. If they don’t, they are misleadingly labeled and also subject to FDA penalty.

Merchants not based in the U.S. who received FDA letters were told that the agency will work to have their shipments into the U.S. stopped at customs, and that the FDA will notify authorities in their home countries that their banned products will not be allowed into the U.S.

The FDA’s enforcement effort is part of its initiative to prevent children and adolescents from taking up the smoking habit—something they can be lead into by candy- or fruit-flavored tobacco products, as well as marketing aimed at young audiences.

“FDA takes the enforcement of this flavored cigarette ban seriously,” Center for Tobacco products director Lawrence Deyton said in a release. ”These actions should send a clear message to those who continue to break the law that FDA will take necessary actions to protect our children from initiating tobacco use.”

In related news, a U.S. District Court ruled a week ago that tobacco companies have little chance of blocking enforcement of the Family Smoking Prevention Act on the grounds that it restricts their free speech rights to market new tobacco products, including smokeless tobacco and so-called “electronic cigarettes.”

R. J. Reynolds, which markets the Camel cigarettes product line, and Lorillard Inc., maker of Newport menthol cigarettes, filed suit against the law Aug. 31 in Richmond, VA, along with several other smaller tobacco marketers. In its filing, Reynolds asked the court to issue a preliminary injunction against the law, arguing that it impaired “their First Amendment right to communicate with adult tobacco consumers about their products.” If granted, the ruling would have prevented the FDA from enforcing the law while the plaintiffs pursued their broader case against it.

But U.S. District Court Judge Joseph McKinley denied the injunction on Nov. 5, saying that the “plaintiffs have little likelihood of success” in challenging the provisions of the law governing new “modified-risk” tobacco products.

The ruling means the tobacco makers will have to comply with the FDA’s new manufacturing and marketing regulations while the plaintiffs’ lawsuit moves forward.

That suit contends that the new law prohibits their use of “color lettering, trademarks, logos or any other imagery in most advertisements, including virtually all point-of-sale and direct-mail advertisements.” They also allege that new, more prominent health warnings on package fronts and cartons will relegate their branding to the bottom half of cigarette packaging and make it difficult, if not impossible, to see.”